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Updated: Questions That Report Of Arrests For Facebook Comment Raise About Indian Law

Update (22/11/12): The head of the Press Council of India, and former Supreme Court judge Justice Katju, who had written to Maharashtra CM regarding the issue, received a response from Prithviraj Chavan, Maharashtra CM, stating that the state government is taking the matter in all seriousness. He informed that the police has arrested 9 people for vandalizing the hospital of a relative of Ms. Shaheen Dhada and stated that appropriate action against the persons responsible for the arrest of the girls will be taken upon getting the enquiry reports of the Inspector General of Police, Konkan Range.

Update: Shaheen Dadha, the girl who posted the comment on facebook, has apologised for it. See the video here. Nine have also been arrested for vandalism of the girl’s uncle’s clinic (video). Meanwhile, Mid Day has published the photograph of the man allegedly responsible for the attack on the clinic. A screeshot here. (all links via @shivaroor)

Update (20/11/12): The head of the Press Council of India, and former Supreme Court judge Justice Katju, has written a second letter to the CM of Maharashtra since he did not receive a reply, stating that “Article 21 of the Constitution, to uphold which you have taken an oath, states that no one can be deprived of his life or liberty except in accordance with law. Does Article 21 not exist in Maharashtra ? Does freedom of speech guaranteed by Article 19(1)(a) also not exist in your state ?” and urged the CM to realize “that silence is not an option for you in the matter. The entire nation is furious at this apparently illegal arrest.”

According to a report by Hindustan Times, Mumbai police has arrested 9 people for vandalising the clinic of the uncle of the girl arrested for an anti-Bandh Facebook post. However, it is unclear that the  those arrested are Shiv Sena workers.

Update (5pm): The head of the Press Council of India, and former Supreme Court judge Justice Katju, has written a letter to the Chief Minister of Maharashtra, stating that “To my mind it is absurd to say that protesting against a bandh hurts religious sentiments”, and “…this arrest itself appears to be a criminal act since under sections 341 and 342 it is a crime to wrongfully arrest or wrongfully confine someone who has committed no crime.” He has requested for the suspension, arrest, chargesheeting and criminal prosecution of the police personnel who ordered and implemented the arrest, “failing which I will deem it that you as Chief Minister are unable to run the state in a democratic manner as envisaged by the Constitution to which you have taken oath, and then the legal consequences will follow.”

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Update: The two girls were ordered to be sent to 14 days of judicial custody, and have now been granted bail after depositing a Rs 15,000 bond, reports NDTV. According to the report, the Police arrested the girls under Section 505 of the Indian Penal Code.

A 21 year old girl from Palghar was arrested for posting an update on Facebook, apparently saying that “people like Thackeray are born and die daily and one should not observe a bandh for that”, and her friend for arrested for liking that status update, according to the Mumbai Mirror. The girl withdrew her comment and apologised, and despite this, 2000 Shiv Sena “workers” attacked and ransacked her uncle’s orthopaedic clinic. There is no indication about whether any action was taken against these “workers”.

According to NDTV’s Sreenivasan Jain, though, this report may not be correct. Thus, for time being (and academic purposes), lets assume a hypothetical situation wherein someone was arrested for this facebook update, and another person was arrested for liking that update, and a clinic was vandalised:

Nothing Libelous, but still…

There doesn’t appear to be anything libelous about this comment, and even if it does offend some people, the right to offend is an important part of freedom of speech. Indian law doesn’t appear to agree with this, though.

As per the initial report, the arrests were done as per Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. There might be a mistake in the report, because section 64 of the IT Act refers to digital signatures (check IT Act 2008 amendments and IT Act 2000 which has the information on section 64)

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It is more likely to be Section 66 (A), which states that “(a) any information that is grossly offensive or has menacing character”.

The impact of this arrest would be that people might be more careful about criticising developments related to political personalities, for the fear of being attacked or arrested by the police, or it might lead to a Streisand effect – that people might start commenting on this development even more. How many people will the police arrest, and how many establishments will “workers” vandalize?

The second girl being arrested for liking the update on Facebook would be even more surprising, and quite worrying. What is illegal or criminal about liking someone elses update? Are we not free to approve or disapprove of something online? After being (potentially, reportedly) wrongly arrested, what recourse does someone have against the police?

A Vote For Anonymity

If the girl had been anonymous, she wouldn’t have been arrested, nor would her uncle’s clinic have been attacked. Neither has the law protected her freedom of speech, nor, apparently, has it protected her family. Instead, she (reportedly) got arrested.

The state of law and law enforcement is such that we need to be protected against both our political representatives (and their “workers”), as well as our law enforcers; We would be better off anonymous than publicly sharing our views.

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Some Questions The Arrest Would Raise

To end, some questions that this incident raises (assuming the report is accurate):
– Who decides whether something is “grossly harmful” or “hurting religious sentiments”, even if it is not libelous?
– Are we not free to approve or disapprove of a comment online? How is liking someone elses comment make you eligible for arrest?
– At what level in the police is this decision taken, and is there even someone qualified enough to understand the difference between a comment as just a like?
– If someone was wrongfully arrested, what recourse do they have against such police action?
– Who decides whether to take action, and how swiftly to take action – others post libelous comments online, so why is the police selective in its action? This is applicable to the instance where a businessman was arrested for tweeting about a ministers son. Some men are more equal than others?
– Are we just better off being anonymous online (are we truly anonymous?), so that we can say what we really want to say, without fear of retribution from the state and political parties?
– With an increase in the misuse of the IT Act, why is nothing being done?

Keep in mind that there’s a court case in progress for the quashing of the draconian IT Rules 2011. Frankly, the IT Act 2008 also has similar provisions, and needs to be addressed too. Read about it here.

Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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